A descriptive term like 'Sugar Free' can be used by others in the market, provided it does not mislead consumers, balancing trademark exclusivity with fair competition. The court recognized the difficulty in granting absolute rights over common descriptors.

1. I.A. No. 3847/2007
The plaintiff has filed the present suit, seeking, inter alia, a decree of permanent injunction for restraining the defendants from using in any manner, particularly in relation to their products, viz. frozen desserts and choc minis, the expression 'Sugar Free', which, the plaintiff claims has acquired exclusivity as a trade mark in relation to the various products manufactured by it. The said relief is being sought in order to prevent the defendants from passing off their products as those of the plaintiff as well as for rendition of accounts and damages.

2. Pending disposal of the present suit, the plaintiff filed an application being I.A. No. 3847/2007 under Order XXXIX , R.1 and R.2 read with S.151 of the Code of Civil Procedure, 1908 (hereinafter, "CPC") for seeking interim relief. This Court vide order dated 3.4.2007 granted an ex parte ad interim injunction against the defendants. Pursuant thereto, defendant Nos. 1 and 2 filed an appeal being F.A.O. (O.S.) No. 113/2007 for setting aside the ex parte order dated 3.4.2007. A Division Bench of this Court vide order dated 4.5.2007 directed that the appeal being F.A.O. (O.S.) No. 113/2007 shall be considered as an application under Order XXXIX , R.4 of the CPC for vacation of the ex parte order dated 3.4.2007.

3. Accordingly, two applications have come up for disposal before this Court - one under order XXXIX, R.1 and R.2 read with S.151 of the CPC seeking temporary injunction, and the other under order XXXIX, R.4 of the CPC seeking vacation of the ex parte order dated 3.4.2007. I shall dispose of both these applications together as both of them are interlinked and the fate of one shall invariably decide the fate of the other.

4. First and foremost, it is essential to place on record a few incontrovertible facts which have led to the present applications and will provide us with a necessary prelude to effectively appreciate the substantive and technical aspects involved herein.

5. The plaintiff is engaged in the field of manufacturing and marketing of pharmaceuticals, medicinal preparations and health care products. The defendant No. 1 (hereinafter, the defendant), on the other hand, is engaged in the manufacturing, selling and marketing of various dairy products. The plaintiff and defendant have locked horns on the use of the expression 'Sugar Free' which apparently both parties are using in relation to their respective products. Whilst the plaintiff claims to be using the expression 'Sugar Free' as a trade mark in relation to its products, the defendant states to be using the said expression only in its descriptive sense to convey the special attributes of its product, namely, Pro Biotic Frozen Dessert.

6. The case, as set out by the plaintiff, is that the trade mark 'Sugar Free' was adopted in the year 1988 by the predecessor of the plaintiff company